A Capehart Scatchard Blog

There are a large number of petitions for permanent partial
disability benefits filed each year in New Jersey for scars and serious
lacerations. It is important for
practitioners to understand that injuries due to scars are subject to
completely different proofs from all other physical injury claims in New
Jersey.

The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function. Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award. In fact, it is uncommon that a scar injury has an impact on bodily function. The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder. Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.

Given that the test is essentially how disfiguring the scar
looks, these kinds of cases may not even need an evaluation by a physician,
although the practice statewide seems to favor getting IMEs. In many instances, it is more helpful to ask
the injured worker to come to court so that the lawyers, and sometimes the
Judge of Compensation, can view the scar if it is on the face, hands or arms. When the location of the scar is more private,
or the claimant is uncomfortable having it viewed in person, a current photograph
can be just as helpful or a description by a doctor in a medical report can
suffice.

When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring. One does not need a medical degree to answer the following: Is it a raised scar? Is it uneven or bumpy? Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring. In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36.

Because scars take a long time to heal and because collagen
breaks down slowly at the site of the wound, the scar may fade significantly
over a long period time. For this
reason, it is not wise in serious scar injury cases for respondents to rush to
get an IME soon after the injury. Often
scars improve markedly one year or more after the initial injury. It is
often startling to see how different the injury site looks at the time of the
work incident versus how it looks one or two years later.

Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury. For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)? The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar. An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks. The defense, in this instance, would need an IME with its own psychiatrist.

The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement. In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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The content of this blog is for informational purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You should consult a lawyer concerning your specific situation and any specific legal questions you may have.